Section 0240-05-06-.10 - HEARING OF FORMAL COMPLAINTS(1) APSU will conduct a live hearing of formal complaints not dismissed pursuant to this rule.(2) At the request of either party, APSU will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the hearing officer and parties to simultaneously see and hear the party or the witness answering questions.(3) Live hearings may be conducted with all parties physically present in the same geographic location or, at APSU's discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.(4) At least seventy-two (72) hours prior to a live hearing, APSU will provide both parties with written notice of the following:(a) The time, place, date of the hearing, and electronic access information, if applicable;(b) The name of each witness APSU expects to present at the hearing and those APSU may present if the need arises;(c) The right to request a copy of the investigative file; and(d) The right to request copies of all documents, copies of all electronically stored information, and access to tangible evidence that APSU has in its possession, custody, or control and may use to support claims or defenses.(5) When notice is sent by United States mail or courier service, the notice is effective on the date that the notice is mailed or delivered to the courier service. When notice is hand delivered to the parties from APSU, notice is effective on the date that the notice is delivered to the parties. When notice is sent by email, the notice is effective on the date that the email is sent to the parties' APSU-provided email account.(6) The hearing officer may allow a temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include but is not limited to considerations such as the absence of a party, a party's advisor, or a witness, concurrent law enforcement activity, or the need for language assistance or accommodation of disabilities.(7) In cases that involve more than one (1) respondent, the hearing officer may, consistent with the requirements of Title IX, consider whether separate proceedings are necessary to avoid undue prejudice to the respondents.(8) During the hearing, the hearing officer will make evidence subject to review and inspection during the investigation phase available to give each party equal opportunity to refer to that evidence, including for purposes of cross-examination.(9) Questions and evidence about the complainant's sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant's prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant's prior sexual behavior with respect to the respondent and are offered to prove consent.(10) Only relevant cross examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the hearing officer will first determine whether the question is relevant and explain any decision to exclude a question as not relevant.(11) The hearing officer will not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.(12) Notwithstanding any limitations to the contrary that APSU has placed on the advisor's participation in the hearing, the hearing officer will permit each party's advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing will be conducted directly, orally, and in real time by the party's advisor of choice and never by a party personally.(13) If a party does not have an advisor at the live hearing, APSU will provide without fee or charge to that party an advisor of APSU's choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.(14) If a party or witness does not submit to cross-examination at the live hearing, the hearing officer will not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the hearing officer cannot draw an inference about the determination regarding responsibility based solely on a party's or witness's absence from the live hearing or refusal to answer cross-examination or other questions.(15) APSU will create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.(16) The hearing officer may dismiss the formal complaint or any allegations therein, if at any time during the hearing a complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein, the respondent is no longer enrolled or employed by APSU, or specific circumstances prevent APSU from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.(17) If the hearing officer dismisses the formal complaint during the grievance process, the hearing officer will promptly notify the Title IX Coordinator who will promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties.Tenn. Comp. R. & Regs. 0240-05-06-.10
Emergency rules filed November 20, 2020; effective through May 19, 2021. Emergency rules expired effective May 20, 2021, and the rules reverted to their previous statuses. New rules filed July 21, 2021; effective 10/19/2021.Authority: T.C.A. §§ 49-8-101(a)(2)(A) and 49-8-203(a).
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